March 2018
How accurate is ShotSpotter technology? Can it identify a specific location where a gun has been discharged? Can it pinpoint a specific person?
Articles in this Issue
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A New Model Law Offers Hope: Postpartum Disorders and the Law
A new Illinois statute, the first of its kind in the United States, permits postpartum depression and postpartum psychosis to be considered a mitigating factor at sentencing for crimes committed when women are suffering from these illnesses. Defense attorney Barry Lewis writes that although this legislation is limited in scope (when compared to laws in other countries), the hope is that it will serve as a model for similar or broader laws in other states.
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Affiliate News
Affiliate News, March 2018 Champion.
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Book Review: Exonerated - A History of the Innocence Movement
Exonerated is a well-deserved accolade for the incredible and important work of Barry Scheck and Peter Neufeld, the Innocence Project and the Innocence Network. They collectively are the centerpiece of the book and deservedly so along with honorable mention to Jim McCloskey’s Centurion Ministries, Earl Stanley Gardner’s Court of Last Resort, Bedau and Radelet’s scholarship and the work of several others. Time magazine featured Barry Scheck and Peter Neufeld in its February 2017 cover story “Innocence: The Fight Against Wrongful Convictions.” They are heroes of the capital defense and innocence communities and continue to be an amazing force in exposing wrongful convictions. And, of course, for readers of The Champion, Barry Scheck was NACDL President in 2004-05.
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Book Review: My Name Is Molly
Molly O’Rourke has taken quite a fall, from a lucrative civil practice with a top firm to defending criminals as a public defender. The recession is allegedly the culprit, but that excuse fades as she also loses her fiancé and her apartment in quick succession. After years of living a sheltered and privileged life, Molly is suddenly immersed in the ice water of reality: a “joke” of an office, complicated clients, unpredictable colleagues, and the terrors and joys of the courtroom. Along the way she learns why many of her fellow defenders never considered another line of work.
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Book Review: Who Killed These Girls? - The Unsolved Murders That Rocked a Texas Town
Who Killed These Girls? is a true story about Austin, Texas, criminal defense lawyers fighting to save three defendants — Robert Springsteen, Jr., Michael Scott, and Maurice Pierce — from death sentences resulting from false confessions. It is about determined police detectives and prosecutors who felt pressured by the public to arrest someone and send them to the death chamber, and members of the media who daily headlined every detail of the progress of the case. The book is about the families of the girls who died, and how the decade-long ordeal affected their lives. It is also about arrogance, egos, awards, and commendations. It is a case study in the navigation of a legally and factually difficult high-profile case.
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Defending Internet Service Providers After the ‘End of the Web as We’ve Known It’
Despite being described by the Department of Justice as “unnecessary” and “unconstitutional,” Congress passed FOSTA, the online sex trafficking statute, with little opposition. While lawmakers’ intent was to target sex trafficking, FOSTA threatens internet service providers with criminal liability for content generated by users. Defense attorneys must be ready to push back. NACDL White Collar Crime Policy Counsel Caleb Kruckenberg outlines arguments that can be used to challenge the scope of prosecutions brought under FOSTA.
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DWI
The cross-examination techniques and demonstrations described in this article have been used at DUI trials to impeach an arresting officer’s testimony concerning field sobriety exercises as well as to attack the officer’s opinion as it applies to sobriety. Each demonstration is inexpensive and easy to set up.
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From the President: Closing the Door on Closing Accounts: Ending the Damaging Impact of De-Banking
Sometimes individuals who have been convicted of a crime have difficulty opening and maintaining bank accounts. Financial institutions often shut out customers with criminal histories partly as a result of the overcriminalization of financial rules.
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Getting Scholarship Into Court Project
Getting Scholarship Into Court Project, March 2018 Champion.
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Inside NACDL: The Supreme Court Once Again Steps in to Curtail Government Abuse of Vague Criminal Pr
On March 21, 2018, in Marinello v. United States, the U.S. Supreme Court once again intervened to block an overly expansive application of a vague criminal provision. The case involved the Omnibus Clause of the Internal Revenue Code.
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NACDL News: At the Supreme Court: A Swearing-In Ceremony for NACDL Members
NACDL President Rick Jones poses with the NACDL members who were admitted to the Bar of the Supreme Court of the United States on Jan. 16, 2018. From left to right: Arnold Jay Levine; William (Bill) Peter Wolf; Jason Gazewood; Marissa Goldberg; Rick Jones; Lisa Jama Ramsey; Lanet Renee Scott; Kelly M. Zacharias; Drew Findling; and Randall Joseph Leeman, Jr.
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NACDL News: Department of Justice Successfully Blocks Public Access to Its Federal Criminal Discover
The Department of Justice (DOJ) filed notice on Jan. 17, 2018, of its decision not to appeal the release of an extremely limited portion of its Federal Criminal Discovery Blue Book. The portion of the Blue Book that the court found was not work product was a tiny fraction — what amounts to not much more than a handful of pages — out of a manual that contains at least 265 pages.
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NACDL News: NACDL ‘Profoundly Disappointed’ by Passage of Warrantless Surveillance Legislation
On Jan. 18, 2018, the Senate passed S. 139, the Foreign Intelligence Surveillance Act (FISA) Amendments Reauthorization Act of 2017, which was signed by the president shortly thereafter, codifying warrantless surveillance of Americans into law. The legislation reauthorizes Section 702 of FISA, which was intended to target the communications of non-U.S. persons overseas, but often captures purely domestic communications.
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NACDL News: NACDL Blasts Administration’s ‘Retrograde’ Guantánamo Plan
On Jan. 30, 2018, the Trump administration formally rescinded President Obama’s 2009 directive to close the detention facility at the U.S. Naval Base at Guantánamo Bay, Cuba. The practical effect of this action is that, for the foreseeable future, the military detention facility — at which there remain 41 detainees, the majority of whom have never even been charged with any offense, and some of whom actually have been cleared for transfer — shall remain open. Overall, roughly 780 people have been detained at this facility since 2002.
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NACDL News: NACDL Endorses Public Defender Office Leadership Standards; Calls on Los Angeles County
At its midwinter meeting in New Orleans on February 17, 2018, NACDL’s Board of Directors adopted a resolution “Concerning Public Defender Selection.”
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NACDL News: NACDL Press Publishes The Feminine Sixth: Women for the Defense, by Defense Attorney and
On March 1, 2018, the start of Women’s History Month, NACDL Press released The Feminine Sixth: Women for the Defense, a groundbreaking book on women in criminal defense by Andrea D. Lyon. Ms. Lyon is a leading criminal defense attorney, legal scholar, Dean and Professor of Law at Valparaiso University School of Law, and decades-long NACDL member.
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NACDL News: Seminar Attendees Consider ‘Winning Strategies’
Jan. 22, 2018 — Veteran and young lawyers gather in Aspen, Colorado, at NACDL’s “Winning Strategies for the Defense” seminar. Participants gained insight regarding topics ranging from dealing with difficult judges and emotion-based storytelling at sentencing to cross-examining snitches.
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NACDL® 2018 Election Procedures
NACDL® 2018 Election Procedures, March 2018 Champion.
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New Technologies, New Defenses: Beating ShotSpotter in Firearms Trials
ShotSpotter is acoustic gunshot detection and location technology that detects gunfire using GPS-enabled microphone sensors installed on rooftops and utility poles. According to ShotSpotter, the sensors can result in the placement of a fixed point on a map (within a few feet) where a gunshot event happened. However, are the sounds always gunshots or are they sometimes vehicles backfiring or fireworks? How accurate is ShotSpotter? Preliminary reports suggest a level of geographic precision that does not withstand the company’s own detailed analysis.
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Riling Up the Border Search Doctrine: Litigating Searches of Digital Content at Our Ports of Entry
In Riley v. California, the U.S. Supreme Court held that law enforcement must obtain a warrant to search digital information on cellphones that are seized during a lawful arrest. Does the Riley holding prohibit warrantless searches of digital devices at the border or ports of entry? Customs & Border Protection has continued its practice of searching laptops and computers at the border without a warrant and, in many cases, without any suspicion. Aisha Dennis provides an overview of Riley and litigation post-Riley. She includes takeaways to assist attorneys who may be litigating this issue.
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The Autopsy as a ‘Dying’ Art
When someone has been accused of causing the death of another person, what information should defense attorneys expect to see in an autopsy report? What is the role of a second autopsy? What are the concerns when an autopsy has been delayed? Forensic pathologists Evan Matshes and Sam Andrews answer these questions and discuss the lack of uniformity in autopsy reports.